Alaska Rural Justice and Law Enforcement Commission Options Worksheet for Work Groups. Component: Local Capacity/Community Empowerment/Infrastructure

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1 Option# D- LC 1-1 Alcohol and drug abuse and its impact on families Village Alcohol counselors and 28+ day treatment centers in some hub communities that also provide outpatient care/long term care in cities a) More services located in village that invoke cultural values and include victims, family, and community in treatment. b) More treatment centers where women and their children can receive treatment together. Lack of funding for villages to create infra structure for new approaches to treatment Option(s): a) More services located in village that invoke cultural values and include victims, family, and community in treatment. b) More treatment centers in which victims can have children live with them.

2 Option# D- LC 1-2 Substance abuse is an aggravating factor in child abuse and domestic violence. 1 Local capacity to address alcohol and drug abuse, while essential, is inadequate. Tribal justice systems are hindered in their ability to operate to their full potential, local treatment and counseling services are inadequate, and local law enforcement presence is inadequate, creating a situation in which alcohol and drug abuse issues are not effectively being addressed locally. a) State court criminal system does DOES or DOES NOT? include alcohol screening and treatment as a part of alcohol and drug abuse sentencing, because of inadequate follow through and lack misdemeanor probation and aftercare programs, offenders often go back to village and re-offend, continuing the cycle. b) Local tribal justice systems in villages have and continue to work with families where drug and alcohol abuse is occurring and causing child abuse and neglect. However, the state's position regarding tribal court authority diminishes ability of tribes to most effectively develop local capacity and most effectively address child protection, alcohol violations, domestic violence, juvenile issues and minor offenses. c) Local resources for treatment and counseling are inadequate. Where there are local treatment providers, they are at various levels of certification to provide substance abuse counseling and treatment. Overall there is not consistent, adequate treatment and counseling for substance abuse. d) Law enforcement presence in villages is inadequate. The VPSO program is underfunded and understaffed and Troopers in rural Alaska cannot adequately provide a presence in villages, and must prioritize due to lack of resources. e) Currently effective village-based/native treatment programs Old Minto Recovery Camp, therapeutic court f) Many tribes have made substantial progress toward developing local capacity, but have not always been able to sustain their efforts because of inability to sustain vital funding (federal and state). Examples of local capacity that continues to grow can be found throughout the interior, including Mt. Sanford Tribal Consortium, and in Kake and other tribal communities that are 1 In its Final Report in 2000, the Alaska Criminal Justice Assessment Commission found that it is imperative to reduce substance abuse related crimes through prevention and treatment programs, and that 97% of Alaska Native crimes have alcohol or drugs as a factor and 81% of reports of harm involve substance abuse. See also, the Final Report of the Alaska Natives Commission, May 1994, finding that alcohol poses the single greatest threat to the well-being of many Native families, resulting in domestic violence and much higher rates of FAS, Vol. II, p. 77. See also, Alaska State Troopers Alaska Bureau of Alcohol and Drug Enforcement (ABADE) 2003 Annual Drug Report, in which ABADE acknowledged that "[m]embers of Alaska's law enforcement community and others who are part of Alaska's criminal justice system have long known that the greatest contributing factor to violent crimes, including domestic violence and sexual assault, is drug and alcohol abuse." Report, at 5.

3 located in or near larger communities, such as Nome, Kake, Central Council of the Tlingit and Haida Indians in Juneau, Sitka Tribe, Curyung, Metlakatla and Eastern Aleutian Tribes, Inc.. There are some successes in very isolated communities as well, but these have been more difficult to sustain when funding and coordination support have been less stable and consistent a) Local tribal justice systems fully funded, recognized by state so that they can operate most effectively and without impediment, initiating tribal court cases to address infractions involving alcohol and drug abuse, child protection situations involving abuse or neglect, domestic violence, juvenile issues and minor offenses. Through tribal justice systems, people with alcohol and drug abuse issues receive more effective (than state system) local supervision and monitoring, respond better to non-western, non-adversarial system that relies on traditional values with more appropriate traditional and subsistence approaches/activities woven into system. 2 b) There is no consensus in the group that this statement is realistic. While there is agreement that tribal governments and courts would be in the position to help village residents overcome their problems with unique approaches that reflect a greater understanding of community norms and culture, the same restrictions on funding and treatment options faced by the state and private agencies in Rural Alaska will hamper tribal efforts to resolve substance abuse and the other social problems even if the current legal impediments to tribal courts are resolved. c) Adequate law enforcement exists in all villages in rural Alaska. This would include fully funded and staffed VPSOs and other law enforcement such as tribal police. This would also include more active local involvement by Troopers. d) Fully trained and qualified substance abuse treatment providers with comprehensive treatment programs locally in all villages in rural Alaska a) State position regarding tribal jurisdiction and authority provided, regarding child protection matters, in AG opinion dated October 1, b) Lack of funding and resources for tribes to most effectively operate tribal justice systems. 2 In its Final Report in 2000, the Alaska Criminal Justice Assessment Commission recommended increased reliance on local justice initiatives and treatment programs. See also, Final Report to the Governor, Alaska Commission on Rural Governance and Empowerment, in which the Commission recommended that the Governor encourage use of local systems of all kinds, including tribal courts, to improve effectiveness of the justice system, and that the state should recognize and support the legal authority of tribes on adoption, child protection and other civil matters, and diversion of misdemeanor offenses to tribal courts willing to accept them. See also Alaska Advisory Committee to the U.S. Commission on Civil Rights Report "Racism's Frontier: The Untold Story of Discrimination and Division in Alaska, 2001" in which the Committee recommended (recommendation 3.2) that tribal court jurisdiction be immediately implemented at the village level, and that the federal and state governments should continue to support restorative justice efforts with funding and technical assistance in order to allow for greater local control of justice matters, Report, at See also the AFN Implementation Study of 1999, (considering implementation of recommendations made by the Alaska Natives Commission) which recommended establishing clear civil and criminal authority for Alaska tribes to develop effective local programs to have control over and respond to alcohol, drug and inhalant abuse, domestic violence, and sexual assault at the community level, and for necessary funding, at C1. Similarly, the Alaska Natives Commission found in its Final Report that the federal and state governments must implement policies and enact necessary statutes that give maximum local powers and jurisdiction to tribes and tribal courts in the areas of alcohol control, community and domestic matters, and law enforcement. Vol. II, pp , 78.

4 c) Underfunding of VPSO program/general lack of funding for law enforcement. d) Lack of funding for local substance abuse treatment providers in areas of compensation, training and education, and program funding. Option(s): a) Tribes and state reach agreement on tribal jurisdiction for such matters as child protection, domestic violence, juvenile issues and minor offenses. 3 b) State reconsider AG opinion dated October 1, 2004 in which AG issued opinion that tribes do not have jurisdiction to initiate child protection cases in tribal court. 4 State administration takes an expanded view of tribal jurisdiction in both legislative and judicial forums. c) Tribes enact and enforce laws consistent with local options of village; state and federal government recognize and support authority for tribes to address alcohol violations locally in tribal court. 5 3 See Option JS-1 proposed by members of the Judicial Systems Workgroup of the Commission: "Create a Task Force to propose a State/Tribal ICWA agreement for consideration by the Department of Health and Social Services and Alaska s Tribes" Such an agreement would support this option by providing a mechanism under ICWA 1919 for the state and tribes to reach agreement on tribal court jurisdiction regarding child protection cases originating in tribal court. See also the Memorandum of Robert Anderson, Director, Native American Law Center, University of Washington School of Law, submitted to Alaska Rural Justice and Law Enforcement Commission February 24, 2005, in which Mr. Anderson concludes that tribes in Alaska listed on the Federal Register are recognized tribes with powers of self government (Memorandum, at 8), have jurisdiction to regulate domestic relations among members (Memorandum, at 14), that state courts, lower federal courts, state attorney's general, the Solicitor's Office for the Department of Interior, and legal scholars have all concluded that even without Indian Country, Public Law 280 left the inherent civil and criminal jurisdiction of the tribes untouched (Memorandum, at 16) and that Public Law 280 "has no bearing on matters before the Commission." (Memorandum, at 16). See also John v. Baker, 982 P.2d 755 (Alaska 1999). It should be noted that in the Final Report to the Governor, the Alaska Commission on Rural Governance and Empowerment recommended that the governor should encourage use of local systems of all kinds, including tribal courts, to improve the effectiveness of the justice system that serves Alaska, which would require recognition and support of the tribes legal authority over adoption, child protection, and other civil matters, including diversion of misdemeanor offenses to those tribal courts willing to accept them. 4 See Alaska Federation of Natives Resolution adopted at the 2004 Annual Convention, a resolution "Clarifying the role of Tribes and Tribal Courts in Matters of Child Protection in Alaska" condemning the Alaska Attorney General Opinion dated October 1, 2004, and directing AFN staff to oppose the enactment of the propositions contained in the opinion and to advocate for the continued role of tribes in child protection matters and seek reversal, withdrawal or enjoining of the opinion by whatever means necessary. See also Attorney General Opinion Number , March 29, 2002, concluding that state law recognizes inherent tribal authority over child protection matters involving tribal children, and In the Matter of C.R.H., 29 P.3d 849 (Alaska 2001), and John v. Baker, 982 P.2d 755 (Alaska 1999). 5 See Option JS-5 proposed by members of the Judicial Systems Workgroup of the Commission recommending amendments to 18 USC 1156 and 1161 regarding tribal authority to regulate and control alcohol. Such amendments would support this option. See also legal brief, Eric Johnson, AVCP attorney, "The Constitutionality of Congressional Legislation that would Recognize Tribal Authority to Prohibit Alcohol in Alaska Native Villages" which concludes that legislation of this sort would be constitutional, Brief, at 2 See also, the Alaska Commission on Rural Governance and Empowerment, "Final Report to the Governor," June, 1999, in which the Commission recommended that tribes should be empowered to combat alcohol abuse in Native Villages, that federal legislation should provide a framework for concurrent state tribal jurisdiction over alcohol violations in Native Villages, and that the state and tribes should work with Congress to craft federal legislation authorizing willing tribes to handle offenses arising under tribal

5 d) State adequately funds and staffs VPSO program, federal funding obtained for tribal law enforcement, cross deputization of law enforcement. 6 e) Substance abuse treatment providers become qualified to provide comprehensive local substance abuse treatment in villages, comprehensive substance abuse treatment programs developed in villages, funding for local treatment providers and programs obtained, federally funded if state cannot. 7 ordinances prohibiting or regulating importation and use of alcohol within and in the area surrounding villages. See also, the Final Report of the Alaska Natives Commission, May 1994, in which the Commission recommended that federal and state governments must implement policies and enact necessary statutes that give maximum local powers and jurisdiction to tribes and tribal courts in the areas of alcohol importation and control, Final Report, Vol. II, at The Alaska Judicial Council found in its Directory of Dispute Resolution in Alaska Outside Federal and State Courts, 1999, p. 142, that state judges in rural areas are aware of the judicial role taken on by local tribal courts, and tribal councils. They are generally supportive of those efforts, believing that strong local governments are important to the social order of the villages. The Judicial Council also reported that a review of several tribal courts revealed that they handled cases effectively, improving the lives of rural Alaskans, and reduced the demand for state justice services. Resolving Disputes Locally, II, at 113, attached to the Directory as an appendix. This is a summary of recommendations made at 4 bush justice conferences held between 1970 and 1985, in which state officials and rural and Native representatives discussed access to justice in rural Alaska). 6 See Findings, Final Report to the Governor, Alaska Commission on Rural Governance and Empowerment, 1999 (encourage development of intergovernmental coordination; enhance tribal and local governance capacity by delegating authority, establishing agreements, contracting with tribes, and allowing tribes to build capacity; a local law enforcement officer should be present in every community in Alaska, particularly in off-road communities; all categories of officers should be fully trained, equipped, staffed, paid, and acknowledged as part of overarching public safety system; effective public safety requires coordination with local communities, tribes, and regional non-profits. See also Alaska Federation of Natives Resolution adopted at the 2004 Annual Convention, a resolution in "Support of Rural Law Enforcement in Alaska's Villages" supporting the VPSO program, and calling on the state legislature, governor and congressional delegation to design a program that will adequately address public safety needs in villages; Alaska Natives Commission Final Report, Vol. II, p. 61 (state and federal governments should create and utilize all possible opportunities for Native tribes to demonstrate their respective capacities to regulate tribal members; federal and state governments must implement policies and enact necessary statutes that give maximum local powers and jurisdiction to tribes and tribal courts in the areas of alcohol importation and control, community and domestic matters, and law enforcement. Vol. II, pp , The Alaska Natives Commission in its "Final Report" Volume II, 1994, recommended that the state should add and expand programs that are aimed at reducing substance abuse, child abuse, sexual abuse, and violent family dysfunction within Alaska Native families. The "Follow Up Table of Recommendations" from the Final Report of the Alaska Criminal Justice Assessment Commission of 2000 recommended: to increase the number of treatment opportunities during incarceration, including alcohol and substance abuse treatment, and treatment for sexual offenders (at F-12); for state agencies, treatment providers, tribal entities and community organizations to collaborate to establish aftercare and re-entry programs and procedures, and emphasize continued treatment and monitoring of defendants released, especially sex offenders and those with substance abuse and mental disabilities (at E-7). The Alaska Criminal Justice Assessment Commission also recommended increasing the number of substance abuse beds for Alaskans in need of residential treatment, supporting culturally relevant programs for alcohol treatment, and increasing the programs available in rural areas. See also CFSR Review of Alaska OCS, September, 2002, finding that reunification efforts in child protection cases are affected by overall lack of access to relevant services in parent's community, and scarcity of alcohol treatment and follow up services, Review at 38.

6 f) Tribal courts are adequately funded-including staffing, operations and administration, training, technical assistance, recruitment and retention programs. 8 g) Support intergovernmental agreements that provide for cross-utilization of facilities, programs, and personnel by tribal, state and federal judicial systems and the exchange of justice system records information; tribal, state and federal authorities should take formal steps to increase the cross-recognition of judgments, final orders, laws and public acts of the three jurisdictions; promote communication, cooperation, coordination and mutual respect among tribal, state and federal judicial systems; develop tribal-state jurisdictional allocation protocol (e.g. Wisconsin Agreement, which is now being adopted throughout the state of Wisconsin) 9 h) Develop models and model standards that are made available to tribal governments 8 See Final Report to Governor, Alaska Commission on Rural Governance and Empowerment (governor should encourage use of local systems of all kinds, including tribal courts, to improve the effectiveness of the justice system that serves Alaska. This will require flexibility, support for innovation, and recognition by the Alaska State Court System of alternate systems the state should recognize and support the legal authority of the tribes on adoption, child protection, other civil matters, and on diversion of misdemeanor offenses in tribal courts willing to accept them.) In its report "Improving Safety in Indian Country: Recommendations from the IACP 2001 Summit," the International Association of Chiefs of Police recommended that "the federal government should immediately and permanently increase funding it provides for tribal justice systems" and that funding be provided for "pay and training...technical assistance, and...effective recruitment and retention programs." Report, at 12 (Recommendation 10). 9 See State of Wisconsin, 10 th Judicial District, Tribal State Protocol Between State Courts and Tribes Establishing a Protocol for Allocating Jurisdiction, and Wisconsin 161 Agreement, establishing tribalcounty cooperation and full coordination, including county payment for children in tribal foster care, on all matters of child protection, See also Title IV-E and IV-B, 45 C.F.R., allowing state reimbursement of tribal foster care expenditures for children in tribal custody, where there is a tribal-state agreement in place. See also Resolution 27 of the Conference of Chief Justices, adopted August 1, 2002, in which the Tribal Relations Committee resolved that tribal, state and federal authorities should take steps to increase the cross-recognition of judgments, final orders, laws and public acts of the three jurisdictions.

7 Option# D- LC 2 Inadequate response to minor juvenile delinquency offenses creates an atmosphere in which young people are not held accountable and ultimately contributes to child abuse and neglect and domestic violence a) Due to limited resources, state juvenile probation officers are forced to ignore minor delinquency offenders until they commit serious enough crimes. (This is probably true in urban areas as well) b) Many minor juvenile offenses are not investigated or prosecuted in state system due to lack of law enforcement resources that creates need to prioritize away such offenses. c) Tribal governments have entered into MOA's with juvenile probation referring cases to tribal court. a) A diversion system where state probation officers enter into agreements with minor offenders for referral to village governments for appropriate counseling/punishment (chop wood for victim, etc.) b) See "ideal status" for Problem Area One (i.e., D- LC 1-2a), regarding local law enforcement, and development of local capacity of tribal justice systems, which are incorporated here by reference. a) Lack of resources. b) Unclear what state position is regarding tribal jurisdiction regarding minor juvenile offenses that might be handled as civil/regulatory matters in tribal court. c) See "structural barriers" for Problem Area One (i.e., D- LC 1-2b,c), regarding underfunding of VPSOs and lack of funding for local law enforcement, and lack of funding for tribal courts, which are incorporated here by reference. Option(s): a) Expand and implement diversion programs for minor offenders to be referred to tribal governments as a diversion through juvenile probation offices See, e.g., testimony, Mike Jackson, Keeper of the Circle, Organized Village of Kake, Circle Peacemaking, which took top honors from Harvard University, Kennedy School of Government, Honoring

8 b) See "Options" submitted in Problem Area 1 regarding tribes and state reaching agreement on tribal jurisdiction, and state funding of VPSOs, tribal law enforcement, and cross deputization, and funding for tribal courts, which are incorporated here by reference. Nations Program, as an exemplary tribal initiative. Judge Jackson also serves as a Magistrate for the District Court, State of Alaska, in Kake, Alaska.

9 Option# D- LC 3-1 Lack of Safe places for victims of domestic violence in villages. Woman shelters in hub communities and safe homes in some villages. Safe homes or creative "safe spaces" in every village or alternative arrangement to provide safety to battered victims. a) Lack of funding b) Lack of available space in villages Option(s): Safe homes or safe spaces in every village with domestic violence problems or alternative arrangement to provide safety to battered victims

10 Option# D- LC 3-2 Inadequate response by law enforcement and state court system in protecting victims of domestic violence and providing on-going services and treatment necessary to resolve domestic violence issues in rural communities. a) State protective orders are issued, but due to lack of law enforcement resources, victims in rural communities have little ability to have immediate and effective enforcement of protective orders. Alternate tribal remedies that do not track state law found in tribal court orders are not enforced by law enforcement. b) State court system is too overloaded and cannot effectively monitor domestic violence situations and provide help to victims, treatment and services to offenders. c) No supervised probation for misdemeanor DV offenders. a) See "ideal status" for Problem Area One, (i.e., D- LC 1-1) regarding local law enforcement, and development of local capacity of tribal justice systems, which are incorporated here by reference. b) Tribal justice systems issue tribal domestic violence protective orders that are recognized by the state and enforced by law enforcement-whether tribal or state. c) Supervised probation. a) VAWA, 18 U.S.C. 2265(a)(2), requires that states recognize tribal protective orders and give them full faith and credit without having to register them first. State law (AS (a) and (b) effectively requires tribal protective orders be registered with the state court before they will be enforced, which contradicts VAWA. State interprets Title 11 Violation of a Protective Order Crime as only allowing them to make an arrest when a protective order has been filed with the state court system. b) A Department of Law representative disagrees with this analysis. 18 U.S.C. 2265(b) and (d) mandate that a tribal court has jurisdiction over the parties and the matter before one of its orders is entitled to full faith and credit. This requires the tribe to have authority to issue protective orders. (2265(e)). The courts must first resolve these questions. c) See "structural barriers" for Problem Area One, regarding underfunding of VPSOs and lack of funding for local law enforcement, and lack of funding for tribal courts, which are incorporated here by reference. d) Lack of probation officers for misdemeanor offenses

11 Option(s): a) See "Options" submitted in Problem Area 1 (i.e., D- LC 1-2b,c) regarding tribes and state reaching agreement on tribal jurisdiction, and state funding of VPSOs, tribal law enforcement, and cross deputization, and funding for tribal courts, which are incorporated here by reference. b) Revision of state law (AS (a) and (b)) that requires registration of tribal protective orders so that state law conforms with Federal VAWA law. 11 c) See Department of Law representative s comment to structural barrier number In its report submitted in October, 2004, the Supreme Court Domestic Violence Committee recognized that the practice of local law enforcement is to require petitioners to file tribal or out of state orders with the court before enforcing the terms or arresting perpetrators for violations. The Committee concluded that this practice appears to conflict with federal mandate. The committee concluded: "Every participant in the criminal justice system should care about this issue. Not only does the failure to afford full faith and credit to the full range of protective orders put victims at risk, but it could seriously jeopardize eligibility for all Alaskan VAWA grant applications." pps See also Violence Against Women Act 18 U.S.C

12 Option# D- LC 3-3 Lack of trained supervisors and supervision centers makes visitation in DV and child custody cases unsafe in rural areas. 12 a) Court orders unsupervised visitation or makes family, friends or Guardian Ad Litem (GAL) the supervisor of the visitation. b) Anchorage is the only Alaska community with a supervised visitation center. State standards for supervised visitation; trained supervisors in rural locations; supervision centers in rural hub communities. Judicial attitude and hesitation to put restrictions on a parent s visitation, even if they are abusive; funding; finding persons willing to act as supervisors. Option(s): a) More localities/tribes applying for VAWA funding to operate supervision centers. b) Training programs for supervisors. c) CDVSA to adopt standards for supervision centers 12 See October, 2004 Report of the Supreme Court Domestic Violence Committee, at 14.

13 Option# D- LC 4-1 Disproportionate alcohol-related crime and substance abuse in rural Alaska. a) Much interpersonal violence fueled by substance abuse. b) Police resources are spread too thin to protect people when this happens and may in some cases be inappropriately allocated. c) All systems and first-responders are over-burdened from dealing with substance abuse. d) Traditional state court sentencing does not break cycle a) People no longer abuse substances. b) Until that happens, peace officers available in every village with significant problem with drug or alcohol related violence. c) State Court System expands the talking circle court program---using model similar to that used by Magistrate Jackson in Kake. d) Tribal Courts accept diversion referrals form state district attorneys offices in rural areas e) State courts in rural areas offer defendants an opportunity to be bound by recommended sentence of the tribal court in lieu of having their sentence determined solely by the state court judge. a) Lack of Funding b) Might need state court rule changes or statute changes to allow court and prosecutor diversion programs. (DA offices no longer operate a diversion program). Option(s): a) All "Options" submitted in Problem Area 1 (i.e., D- LC 1-1 and 1-2) are incorporated here by reference. b) State Court System expands the talking circle court program---using model similar to that used by Magistrate Jackson in Kake. c) Determine whether any state court rule or statutory changes and MOAs/MOUs between the state and tribes are necessary to most effectively enable tribal courts to accept diversion referrals

14 from state district attorneys offices in rural areas. Department of Law, in consultation with tribes, develops and implements policy for diversions. 13 d) State courts in rural areas offer defendants an opportunity to be bound by recommended sentence of the tribal court in lieu of having their sentence determined solely by the state court 13 In its 2004 Assessment Study of Disproportionate Minority Contact with the Alaska Juvenile Justice System, Executive Summary Prepared for the Alaska Department of Health and Social Services, Division of Juvenile Justice, November, 2004, Craciun Research Group recommended that on-going funding needs to be committed to promising treatment programs such as the Tribal Youth Diversion Effort developed by the Alaska Native Justice Center in partnership with the Division of Juvenile Justice. TYDE works with all parties to develop community based diversion options for offending Alaska Native youth, Study, at 23.

15 Option# D- LC 4-2 There are many committees and organizations addressing the same issues without coordinating with each other. Several state/local/federal programs do not know what each other is doing leading to agencies duplicating efforts and not utilizing limited resources most effectively. All DV/SA and child abuse resources would be used collaboratively and efficiently to best protect victims of abuse. There is not a central body to organize this. CDVSA used to perform this function for state but doesn t have comprehensive data on all state services and tribal services. Option(s): Create a website or central body that would identify all domestic violence and sexual assault resources and serve as a clearinghouse.